M.A.C.A No.1038 of 2014

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 MACA NO. 1038 OF 2014** **AGAINST THE ORDER/JUDGMENT OPMV 1749/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/PETITIONER:** ANISH S. NAIR AGED 33 YEARS S/O.SOMASEKHARAN NAIR, KUNNUMPURATH HOUSE, VEROOR KARA, CHETHIPUZHA VILLAGE, CHANGANASSERY, KOTTAYAM DISTRICT. BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL ## **RESPONDENTS/RESPONDENTS:** 1 SHINU AGED 35 YEARS S/O.RAMACHANDRAN NAIR, SHIBU VIHAR, PUZHAVATHU P.O., CHANGANASSERY. 686101 2 THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE OFFICE COMPANY LTD., ERNAKULAM BRANCH, ERNAKULAM.682011 BY ADV LATHA SUSAN CHERIAN ## **OTHER PRESENT:** SC - LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A No.1038 of 2014 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.1749/2011 on the files of the Motor Accidents Claims Tribunal, Kottayam. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 03.07.2011. 2. According to him, the accident occurred when the motorcycle ridden by him was hit by a car bearing registration No.KL 33/A-3368 driven by the 1[st] respondent in a rash and negligent manner. The said car was insured with the 2[nd] respondent herein. According to him, he sustained serious injuries in the accident. He was working as a driver with a monthly income of Rs.8,000/- and was aged 33 years at the time of the accident. The claim petition was submitted in such circumstances. 3. The 2[nd] respondent filed a written statement admitting the coverage of policy, but they disputed the negligence as well as the quantum of compensation. It was contended that the appellant was under the influence of alcohol, and the police charge-sheeted him for riding the motorcycle without a driving 3 M.A.C.A No.1038 of 2014 licence as well. Therefore, they asserted that the accident occurred due to the sole negligence on the part of the appellant himself. 4. The evidence in this case consists of Exts. A1 to A6 from the side of the appellant. No evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion that the appellant had also contributed to the accident along with the 1[st] respondent, and therefore 50% of the contributory negligence was attributed to him. The quantum of compensation was fixed as Rs.53,500/- and the 2[nd] respondent, the insurance company, was directed to deposit Rs.26,750/-, 50% of the said amount, along with interest at the rate of 8.5% per annum from the date of the petition to realisation. This appeal is filed in such circumstances challenging the findings of the contributory negligence and also seeking enhancement of compensation. 5. Heard Sri.P.M.Joshi, learned counsel appearing for the appellant and Smt.Latha Susan Cherian, learned counsel appearing for the 2[nd] respondent, insurance company. 6. The first question to be considered relates to the finding 4 ## M.A.C.A No.1038 of 2014 on the question of contributory negligence. It is evident from the award that, the said finding was entered into by the Tribunal mainly for two reasons. The first thing was that in the wound certificate of the appellant, it was mentioned that there was a smell of alcohol. Besides the same, he was not having a valid driving license to ride the motorcycle as well. The finding of the Tribunal was on the basis of the entry in the wound certificate to the effect that there was smell of alcohol. However, that by itself cannot be taken as a sustainable ground to find negligence. Merely because it was mentioned in the wound certificate that there was the smell of alcohol, it cannot be assumed that he was under the influence of alcohol unless there are other materials to show the same. In other words, there must be materials to show that he was under the influence of alcohol and the said fact contributed to the accident. 7. A similar view is to be taken in respect of the second reason, namely the lack of a driving license. The mere lack of driving license by itself would not lead to conclusion that he had contributed to the accident. In the absence of any evidence showing his specific contribution to the accident, no assumption as 5 M.A.C.A No.1038 of 2014 to his negligence can be made merely because of his lack of a driving licence. 8. Another aspect to be noticed is that, the police after conducting the investigation, did not find any negligence on the part of the appellant herein and instead, the driver of the car was implicated as the accused in the final report. The position of law in this regard is well settled in the light of the principles laid down by this Court in **New India Assurance Co.Ltd v, Pazhaniammal** [2011 (3) KLT 648], wherein, it was held that in the absence of any contra evidence, the conclusion arrived at by the police in the final report, can be accepted. In this case, as evidenced by Ext.A3, the driver of the car was charge-sheeted, and no contra evidence was adduced. I have already found that, the fact that there was a smell of alcohol and the lack of driving license by themselves cannot be treated as valid grounds for assuming contributory negligence. In such circumstances, I find that, the Tribunal committed an error in attributing contributory negligence upon the appellant. Therefore, the said finding is set aside and it is held that the accident occurred due to the sole negligence of the 1[st] respondent. As the vehicle was covered with a valid insurance 6 M.A.C.A No.1038 of 2014 policy, the 2[nd] respondent is liable to pay the compensation. 9. The next aspect relates to the quantum of compensation. The appellant did not sustain any permanent disability, even though, he sustained some serious injuries and had undergone treatment. For the purpose of computing the compensation for loss of earning, the Tribunal took the monthly income as Rs.5,000/- and the compensation was calculated for a period of three months. The appellant claims that he was a driver by profession and his monthly income was Rs.8,000/-. However, there is no evidence to substantiate the same. But, the fact to be noticed is that, even as per the method of computation of monthly income evolved from the principles laid down by the Hon'ble Supreme Court **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd.** [2014 (2) SCC 735], the monthly income of an ordinary employee, even in the absence of any evidence, can be accepted as Rs.8,000/- in respect of an accident occurred in the year 2011 ( _Calculated by fixing the basic monthly income as Rs 4,500/- for the year 2004 and adding Rs._ 7 ## M.A.C.A No.1038 of 2014 _500/- per year, to determine the monthly income for the subsequent years)_ . Therefore, the monthly income claimed by the appellant (Rs 8000/-) can be accepted as a reasonable amount. 10. As regards the period for calculating loss of earnings, the specific contention put forward by the learned counsel for the appellant is that the three months is not proper. It was pointed out that he suffered fracture dislocation of left talus and fracture of left ankle and in connection with that POP slab was applied below knee. In such circumstances, considering the fact that he was a driver, he must have been prevented from pursuing his employment atleast for a period of four months. Therefore, compensation can be granted for a period of four months. Thus, the additional compensation under the said head would come to Rs.17,000/-. 11. The other head which requires consideration is pain and suffering. Rs.20,000/- was awarded by the Tribunal. However, considering the nature of injuries sustained and the treatment undergone by the appellant, I deem it appropriate to grant a further sum of Rs.10,000/- under the head. Thus, the additional compensation receivable by the appellant is determined as 8 M.A.C.A No.1038 of 2014 Rs.27,000/- (17000 + 10000) and consequent to such revision, the total compensation receivable by the appellant is fixed as Rs.80,500/- (53,500+27,000). In the light of the aforesaid findings and observations, this appeal is allowed. The award dated 16.12.2013 passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV) No.1749/2011 is modified by setting aside the finding of the Tribunal on the question of contributory negligence and it is held that, the 1[st] respondent was solely responsible for the accident. The quantum of compensation receivable by the appellant is fixed as Rs.80,500/- (Rupees eighty thousand and five hundred only. As the vehicle was covered with a valid policy, the 2[nd] respondent is held liable to pay the entire compensation and accordingly, they are directed to deposit the amount referred to above with interest at the rate as ordered by the Tribunal and with proportionate costs within a period of three months from the date of receipt of copy of this judgment. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk